Fanshawe College’s decision to apply its COVID-19 vaccination policy to a professor who worked remotely was unreasonable, an arbitrator has ruled.
This case, centered on the London, Ont.-based college’s mandate that all employees be fully vaccinated, spotlighted the unique circumstances of AW who performed his duties entirely online and was not required to be on campus.
The arbitration stemmed from a grievance filed by OPSEU Local 110, representing AW, challenging the college’s decision to place him on unpaid leave due to his unvaccinated status, despite his remote work setting.
The college, under Policy P105: COVID-19 Vaccinations, had initially allowed remote workers like AW to continue their duties without vaccination until the policy’s adjustment in November 2021, which then demanded all staff, irrespective of their work location, to be vaccinated.
The evidence presented, including testimony from the college’s Director of Employee Relations, and an Agreed Statement of Facts, revealed significant details about the implementation and implications of the vaccination policy.
The director testified about the operational challenges and the college’s rationale behind extending the vaccination requirement to remote employees, citing administrative burdens and absenteeism concerns due to the Omicron variant.
She also confirmed that students enrolled in remote learning courses were not required to adhere to the vaccination requirement and was unable to provide an answer why such a distinction was made.
However, the arbitrator found that the college’s justification fell short, noting, “There was no evidence why the grievor could not continue to perform all of these functions remotely as had been since the inception of the program in 2020.”
Furthermore, the decision highlighted the lack of concrete evidence from the college to support the necessity of AW’s vaccination given his exclusive remote work arrangement.
The ruling emphasized the balance between the college’s interest in maintaining a safe campus and the individual’s right to bodily integrity, concluding that in this instance, the college did not adequately justify the infringement on AW’s rights.
“This case is not about whether the vaccination Policy of the College is reasonable,” the arbitrator said. “This case is more narrowly focused only on whether, based on the evidence before me, it was reasonable to apply the Policy to the grievor in the context of his working conditions at the time.”
The arbitrator noted that, at all material times, AW was working “entirely” remotely.
“This included not only his teaching responsibilities but also his other duties such as attending meetings, meeting with students and performing his Coordinator duties,” the arbitrator said. “The grievor’s uncontradicted evidence is that from March 18, 2020 until September 2022 he did not attend campus.”
The arbitrator ruled the application of the policy to AW in this case was not reasonable.
The arbitrator has retained jurisdiction over the implementation of the award, including the determination of an appropriate remedy if the parties fail to come to an agreement.
For more information, see Fanshawe College v Ontario Public Service Employees Union, Local 110, 2024 CanLII 11422 (ON LA).
